Common sense on linking and defamation from Canadian court

It is always nice to see some common sense from Judges, and we got some this week when the Supreme Court of Canada ruled that ” a hyperlink, by itself, should never be seen as “publication” of the content to which it refers.”

The ruling came in a case that focused on the issue of liability for linking to allegedly defamatory content on the web where Mr Crookes, a member of the Green Party of Canada, had sued Mr Newton on the basis that two of the hyperlinks he created on his website connected to defamatory material about him, and that by using those hyperlinks, Mr Newton himself was publishing the defamatory information.

According to Justice Abella, writing the majority opinion, hyperlinks share the same relationship with the content to which they refer as do references and footnotes. They communicate that something exists, but do not, by themselves, communicate its content. They require some act on the part of the reader to gain access to the content. “The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers”. Only when a hyperlinker “presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker”.

Chief Justice McLachlan and Justice Fish substantially agreed with the reasons of the majority however, they said “a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication.” So a ‘did you see what someone said about x’ might mean you are ok, but ‘I totally agree with what Y said about x here’ and you’d probably be in trouble, and it should constitute publication.

Justice Abella correctly, in my view, recognises that the internet and the web cannot function without hyperlinks, and limiting their usefulness would create a potential “chill” in how the Internet functions, making anyone creating web content concerned of the risk of linking to any other articles or websites whose content they did not control. As he puts it ” Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.”

To anyone that actually uses the internet the majority approach to this is, of course ,common sense but, common sense and the issue of the courts and linking have not always gone hand in hand (although to be fair they – in this case the US courts – did laugh BT’s attempt to say it owned the patent for hyperlinking out of court). Just last year, the U.S. Bankruptcy Court for the Southern District of Texas, ruled that that sending an email with a hyperlink to a defamatory blog post can be considered a publication, even though the email contained no comments on the links that were sent [Outlaw.com report].

In the Canadian case, one judge, Justice Deschamps cautioned that excluding hyperlinks from the scope of the publication rule was an inadequate solution to the novel issues raised by the Internet, and suggested instead that Court hold that in Canadian law, “a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation.” He argued, a simple reference, absent evidence that someone actually viewed and understood the defamatory information to which it directs third parties, is not publication of that content. In this case he found that whilst Mr Newton’s hyperlink to the material was deliberate, there was no evidence that someone actually viewed and understood it to be links to defamatory information.

I’m not aware (although if you’re reading this, and you are leave a comment) of the English courts really tackling this question of hyperlink ‘publishing’ as such [Obviously from a copyright point of view the recent decision in Newspaper Licensing Agency v Meltwater did cover the idea that a hyperlink was capable of infringing copyright, if it was a hyperlinked headline and/or an extract of the copyright work.] The closest thing I know of is in Metropolitan International Schools v Designtechnica. Here the High Court ruled that Google was not a ‘publisher ‘of defamatory words appearing in its search results, as these results were automatically created and there needed to a human “mental element” in responsibility for publication. The Court added Google was still not a ‘publisher’ even where it had been put on notice of the defamatory statement as long as it operated an effective notice and take-down procedure.